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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48190
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a consultant Radiologist. We currently have an

Customer Question

Hello
I am a consultant Radiologist. We currently have an on call rota of 1 night and 1 weekend in 15.
As a body of radiologists, we are in general agreement that 1in 15 is adequate for the needs of our organisation and we are all content with the workload this carries.
We have proposed that when we appoint another new radiologist, that the person who has served the longest time in our organisation should drop off the on call rota, such that a 1 in 15 roster is maintained.
Our line manager has said that any prospective new colleague would potentially see this arrangement as 'discriminatory'. He says that this would be upheld by current employment law.
This sounds rather crazy to me.
Could you comment?
Many thanks
Mike Dobson
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
Hello
18 years
Customer: replied 1 year ago.
the idea would be to repeat the process each time we appoint a new colleague, such that the 1 in 15 rota is maintained. Can this be deemed discriminatory against new appointees?
Expert:  Ben Jones replied 1 year ago.
Discrimination may be a bit of a strong term to use here. For a practice to be discriminatory, someone has to be treated unfavourably because of a protected characteristic. There are only 9 protected characteristics and these are: age, sex, race, religion, disability, marriage, pregnancy, gender reassignment and sexual orientation. Someone has to be treated detrimentally on at least one of these to be able to claim discrimination. In this case, the only relevant characteristic is likely to be age. This is because it could be argued that those with the longest service are also likely to be the eldest and any new member joining the team is most likely to be the youngest. So it would place the younger ones at a disadvantage which could result in indirect age discrimination. So that is where the potential issues may arise. If there was a less discriminatory way of choosing who goes, for example a random draw where the new joiner is included as well, then there will unlikely be any arguments about discrimination because everyone will be treated equally and no age group will be disadvantaged. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 1 year ago.
If the job description stipulated that we expect new appointees to contribute to the on call service for at leat the first 15 years after appointment, would this bypass the 'agist' argument?
Expert:  Ben Jones replied 1 year ago.
Well there will still be someone who is older being treated more favourably than someone who is younger and the fact that you will try and force them to stay in and provide this service for 15 years would not remove that issue
Customer: replied 1 year ago.
ok, thanks Ben.
Time to retire!
Expert:  Ben Jones replied 1 year ago.
I hope it clarifies your position, all the best
Customer: replied 1 year ago.
One last thought: how does such a suggested on call structure differ drom requiring time served to financial pairty in a GP practice, or time served to become a partner in a law firm or accountancy firm?
Does this not inherently imply that there is an age related benefit?
Expert:  Ben Jones replied 1 year ago.
Well obviously experience will count in terms of remuneration and there s a defence of objective justification to a discrimination claim. So it is certainly possible to justify that an increase in pay will reflect a person's level of experience, seniority, etc and inevitably it will be older people who have more experience and hence a higher salary. The same can apply to other benefits, which could have been accrued over a person's career, like additional holidays, etc. Whether you an try and argue that this is a benefit which reflects long service and is accrued over time is something you could try but the issue is that even if what you propose is legal, you cannot force the employer to agree to it